Impeachment Trial of Donald John Trump


In: Blog   Posted 02/05/2020
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Statement for the Record

Impeachment Trial of Donald John Trump
Senator John Cornyn of Texas

 

Mr. President, I would like to submit this statement for the record regarding the impeachment trial of President Donald Trump.  This statement seeks to supplement the remarks that I made on the Senate floor on Wednesday, February 5, 2020.  It includes some of my observations as a former judge on some of the complicated constitutional, legal, and factual issues associated with this impeachment proceeding and its implications for future presidential impeachments.

1. What is the Constitutional standard?

In America, all government derives its power, in the words of the Declaration of Independence, “from the consent of the governed.”[1]  This is not just a statement of national policy, but a statement about legitimacy. 

Elections are the principal means of conferring legitimacy by the consent of the governed.  Impeachments, by the House and tried in the Senate, while conferring authority on 535 Members of Congress to nullify one election and disqualify a convicted President from appearing on a future ballot, exercise delegated power from the governed, much attenuated from the direct consent provided by an election.  It seems obvious that an impeachment of a President during an election year should give rise to heightened concerns about legitimacy.

While there was extensive argument on what the Framers intended the impeachment standard to be, suffice it to say, they believed it should be serious enough to warrant removal, and disqualification from future office, of a duly elected President.

The role of impeachments in a constitutional republic like the United States was borrowed, to some extent, from our British forebears.  But it was not a wholesale acceptance of the British model, with its parliamentary system where entire governments can be removed on a vote of no confidence, but rather a distinctly Americanized system that purposefully created a strong and co-equal chief executive, elected by the people for a definite term, with a narrowed scope of impeachable offenses for the President.

Under the U.S. Constitution, Presidents may be impeached for “treason, bribery, and other high crimes and misdemeanors.”  Due to the rarity of presidential impeachments (three in 232 years), the age of some precedents (dating back to the Johnson impeachment of 1868), and the diversity of impeachment cases (and in particular, the significant difference between the impeachment of judges and Presidents), there remains quite a bit of debate about precisely what actions by a President are impeachable.

Some argue a crime is not required, although all previous presidential impeachments charged a crime.  Some argue that not all crimes are impeachable, only serious crimes can be “high” crimes.  Some categories, including “malversation,” “neglect of duty,” “corruption,” “malpractice,” and “maladministration” were considered and rejected by the Framers.[2]

2. Abuse of Power

The President’s lawyers charge that “abuse of power” alleged in the first Article of Impeachment is not a crime, much less a “high” crime, nor a violation of established law.  This argument raises Due Process of Law concerns with regard to notice of what is prohibited. As Justice Antonin Scalia observed shortly before his death in the criminal context, “invoking so shapeless a provision to condemn someone … does not comport with the Constitution’s guarantee of due process.”[3]

Moreover, they argue that “abuse of power” is tantamount to “maladministration,” which was rejected by the Framers.  There is little doubt that a vague and ambiguous charge in an Article of Impeachment can be a generalized accusation into which the House can lump all of their political, policy, and personal differences with a President.  This should be avoided.

The House Managers say no crime is required for impeachment, and that abuse of power, which incorporates a host of nefarious acts, is all that is required.  No violation of criminal statutes is alleged, nor required they say, and they disagree that abuse of power equates with “maladministration.”  They point to Alexander Hamilton’s statement in Federalist 65 that impeachable offenses are “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

3. Obstruction of Congress.

The House Permanent Select Committee on Intelligence issued dozens of subpoenas and heard testimony from 17 witnesses.  As to other witness subpoenas issued to members of the Trump Administration, White House Counsel Pat Cipollone argued in his October 8, 2019 letter to Speaker of the House Pelosi that any subpoenas issued before passage of a formal resolution of the House establishing an impeachment inquiry were constitutionally invalid and a violation of due process.  The House Managers rely on the Constitution’s grant of the “sole power of impeachment” to the House and argue that no authorizing resolution was required.  Essentially, they argue that under the Constitution the House can run an impeachment inquiry any way the House wants and no one can complain.

No committee of the House was officially delegated the House’s impeachment authority until October 31, 2019, when the House passed House Resolution 660 directing “the Permanent Select Committee on Intelligence and the Committees on Financial Services, Foreign Affairs, the Judiciary, Oversight and Reform, and Ways and Means to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach Donald John Trump, President of the United States.”

Neither the House’s theory that it could act without a delegation resolution, nor the White House Counsel’s argument that subpoenas were void without one was presented to a court during this impeachment inquiry. [4]  In fact, the House intentionally avoided litigation because, as House Manager Adam Schiff stated, it would slow down their inquiry.

One example makes this point.  Charles Kupperman was a deputy to former National Security Advisor John Bolton.  Other than Bolton himself, Kupperman was one of the officials most likely to have direct knowledge of an alleged quid pro quo on aid to Ukraine.  But after the House subpoenaed him last fall, Kupperman went to court and asked for a resolution of the competing claims between the President and the House.  Rather than wait for a judicial determination in this interbranch dispute, the House withdrew its subpoena and affirmatively disclaimed any desire to pursue Kupperman’s testimony in the future.[5]  The House also decided not to subpoena Bolton or any other key witnesses in the administration.

Instead, the House elected to push through impeachment with an abbreviated period of roughly three months and declared any delay by President Trump, even to seek judicial review, to be obstruction of Congress and a high crime and misdemeanor.  The Administration is currently in court challenging demands for witnesses and documents.  Just a couple weeks ago, the Supreme Court accepted such cases for review and stayed the lower court decisions ordering the production of President Trump’s financial records from third parties.[6]  Still, the House impeached President Trump before the Supreme Court or other federal courts could rule on the merits of claims of presidential privileges and immunities in this impeachment inquiry. 

The essence of the House’s second Article of Impeachment is that it is Obstruction of Congress to decline to voluntarily submit to the House’s inquiry and forgo any claims of presidential privileges or immunities.  One interpretation of these facts is that the House simply gave up pursuing the testimony in the interest of speed.  While undoubtedly litigation would have delayed for a time the House’s impeachment inquiry if they were determined to secure the testimony they initially sought, it is clear that the President, and not the witnesses, would assert claims of executive privilege or absolute testimony immunity to protect the Office of the Presidency.  These claims are constitutionally based in the separation of powers, long-recognized by the Department of Justice’s Office of Legal Counsel, and repeatedly asserted by both Republican and Democratic Administrations in countless disputes with Congress.  And since the House did not pursue the testimony originally subpoenaed, the issue of presidential privileges or immunity was never decided.[7]

But that is not all.  Representative Eric Swalwell recently declared that not only should a sitting president be impeached if he or she goes to the courts rather than submit to Congress, but that contesting demands for evidence is actually evidence of guilt on all of the charged offenses. Congressman Swalwell claimed “we can only conclude that you are guilty” if someone refuses to give testimony or documents to Congress.[8]  So much for the presumption of innocence and other constitutional rights encompassed by the Constitution’s guarantee of Due Process of Law.

It is an odd argument that a person accused of running a red light has more legal rights than a President being impeached.

4. The House’s Impeachment Inquiry

The House Managers argue that since Article 1, Section 2 of the Constitution gives the House the “sole power of impeachment,” the President cannot question the procedures as a denial of Due Process of Law or authority by which that House produced the Articles.   What they don’t explain is how House rules can preempt the Constitution.  They can’t.  As Chief Justice John Marshall wrote in Marbury v. Madison, “the Constitution is superior to any ordinary act of the legislature, [and] the Constitution, and not such ordinary act, must govern the case to which they both apply.”[9]

While the Constitution gives the House the “sole power to impeach” it gives the Senate the “sole power to try all impeachments.”  Some have analogized the House’s role to a grand jury in criminal cases.  Generally speaking, a grand jury may issue an indictment, also known as a “true bill,” only if it finds, based upon the evidence that has been presented to it, that there is probable cause to believe that a crime has been committed by a criminal suspect.

But impeachment is not, strictly speaking, a criminal case, even though the Constitution speaks in terms of “conviction” and the impeachment standard is “treason, bribery, or other high crimes and misdemeanors.”  Contrast that with Article 1, Section 3, Clause 7: “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”  In other words, the constitutional prohibition of double jeopardy does not apply. 

Neither are Senators jurors in the usual sense of being “disinterested” in the facts or outcome.  Senators take the following oath: "Do you solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, President of the United States, now pending, you will do impartial justice according to the Constitution and laws, so help you God?"

Hamilton wrote in Federalist 65 the Senate was chosen as the tribunal for courts of impeachment because:

“Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers?”

Because impeachment is neither civil nor criminal in the usual sense, it must be something different.  President Trump’s counsel referred to the Senate role as sitting in a “High Court of Impeachment,” and “Democracy’s ultimate court.”  Hamilton, in Federalist 65, called it “a method of national inquest.”

One of most significant disputes in the Senate impeachment trial of President Trump was the duty of the House to develop evidence during its impeachment inquiry and the duty of the Senate when new evidence is sought by one or both parties during the trial.  In addressing this issue, it is helpful to remind ourselves that the American system of justice is adversarial in nature.  That is, it is a system that “resolves disputes by presenting conflicting views of fact and law to an impartial and relatively passive arbiter, who decides which side wins what.” [10]  This system “consists of a core of basic rights that recognize and protect the dignity of the individual in a free society.” [11]

The rights that comprise the adversary system include … the rights to call and to confront witnesses, and the right to require the government to prove guilt beyond a reasonable doubt.  …  These rights, and others, are also included in the broad and fundamental concept [of] due process of law – a concept which itself has been substantially equated with the adversary system.”[12]

The adversarial nature of these proceedings means that the House Managers were obligated to develop their case, including the evidence, in the House inquiry, and not rely on the Senate to do so.  In typical court proceedings, the failure of the prosecutor to present sufficient evidence at trial results in dismissal, not in open-ended discovery or a re-opened investigation.                                                                                                                                   

President Trump’s lawyers argued that there were three main errors in the House proceedings:

(1) The House did not initially authorize the impeachment inquiry, thus delegating its “sole power” to the Intelligence Committee, which issued dozens of subpoenas the President deemed invalid;

(2)  Numerous due process violations during the Intelligence Committee’s proceedings, including denial of notice, counsel, cross examination, and the opportunity to call witnesses;

(3) And, finally, that as an interested fact witness regarding Intelligence Committee contacts with the whistleblower, Chairman Schiff could not be said to have fairly conducted the House investigation.  

Again, the House Managers argue that the method by which the Articles of Impeachment were approved in the House cannot be challenged in the Senate trial given the House’s “sole power to impeach.”

 

Ominously, the President’s lawyers argue that whatever precedent was set by the Senate in this trial would be the “new normal” and govern not just this trial but all impeachment trials in the future.  They also argue that to make impeachment “too easy” in the House will result in more frequent presidential impeachments being approved by this and future Houses, which the Senate would then be obligated to try.  Similarly, they argue that the Senate should not reward the failure of the House to litigate questions of presidential privileges and immunities in their impeachment inquiry and transfer that burden to the Senate.  An important difference between the House and Senate is that House inquiries can be delegated to committees while the House conducts other business; not so in the Senate, which must sit as a court of impeachment until the trial is completed. 

Thus, during a Senate impeachment trial, absent unanimous consent – unlikely given the contentious nature of the proceedings – the Senate is precluded from any other business, even during delays while executive privilege and similar issues are litigated in the courts.  Given that the House chose to not seek judicial enforcement of subpoenas during its impeachment inquiry because of concerns about delay, the question is do they have a right to do so during the Senate trial?  If so, the President’s lawyers claim, such an outcome would significantly protract a Senate trial and permanently alter the relationship between the House and Senate in impeachment proceedings.  Indeed, there is a strong textual and structural argument that the Constitution prohibits the Senate from performing the investigative role assigned to the House.

The House Managers contend that Chief Justice John Roberts could rule on questions of privilege while presiding over the impeachment trial, avoiding delay during litigation, but the Chief Justice made clear his was not a judicial role in the usual sense.[13]  When the issue of whether the Chief Justice would be a tie-breaking vote came up during the trial, he said:  “I think it would be inappropriate for me, an unelected official from a different branch of government, to assert the power to change that result so that the motion would succeed.”  So it is that the Senate, not the Chief Justice presiding in an essentially ceremonial role during impeachment trials, determines disputed issues.  This conclusion is further supported by the rule that a majority of Senators are empowered to effectively “overrule” an initial determination by the presiding officer.  In the words of Senate Impeachment Rule Seven: “The presiding officer may, in the first instance, submit to the Senate, without a division, all questions of evidence and incidental questions; but the same shall, on the demand of one-fifth of the members present, be decided by yeas and nays.”  The unseemliness of imposing this role on the Chief Justice is obvious and should be avoided.

5. The Facts

Of course, the main factual contentions of the House Managers involve President Trump’s interest in an investigation of Hunter and Joe Biden’s role in Ukraine.  They allege the President’s “corrupt” motive to dig up dirt on a potential political rival is an abuse of power.  The President’s lawyers argue that it is clearly within the President’s authority to investigate corruption and leverage foreign aid in order to combat it.  Even if it incidentally helps the President electorally, they argue it is not a “high crime and misdemeanor.”

But there are more basic factual conundrums.  Any investigations discussed in the July 25 conversation between Ukrainian President Volodymyr Zelensky and President Trump never occurred.  And the foreign aid, including lethal defensive aid and weapons, was paused for just a short time and delivered on September 11, 2019, before the deadline of September 30.

The abuse of power alleged was based on desired investigations and the withholding of foreign aid.  But neither, ultimately, occurred.  This is similar to an “attempted” offense under the criminal law.  Indeed, the law criminalizes a host of attempted offenses.  But the Articles of Impeachment do not charge President Trump with any crimes, including any “attempted” offenses.

6. Burden of Proof

President Trump’s counsel argued that the appropriate burden of proof in this quasi-criminal trial is “proof beyond a reasonable doubt.”  This point was not seriously contested by the House Managers who repeatedly claimed the evidence in support of the Articles of Impeachment was “overwhelming.”  Manager Jerry Nadler went further and claimed, repeatedly, that the evidence produced was “conclusive” and “uncontested.” Manager Zoe Lofgren argued that Senators could use, literally, any standard they wished.

This is significant on the issue of the President’s motive in seeking a corruption investigation from President Zelensky, one that included former Vice President Biden and his son, Hunter, and the company on whose board he served, Burisma.  The House Managers argued, repeatedly, that President Trump did not care about Ukrainian corruption or burden sharing with allies and that his sole motive was to get information damaging to a political rival, Joe Biden. 

President Trump’s lawyers contend that he has a record of concerns about burden sharing with allies, as well as corruption, and produced several examples.  At most, they say, his was a mixed motive – partly policy, partly political – and in any event it was not a crime and thus not impeachable.

Therefore, the question arises: did the House Managers prove beyond a reasonable doubt that the sole motive for pausing military aid to Ukraine was for his personal benefit?  Or, did they fail to meet their burden?

-Conclusion-

Ultimately, the House Managers failed to prove beyond a reasonable doubt that President Trump’s sole motive for seeking any corruption investigation in Ukraine, including of Hunter Biden, was for a personal political benefit.  This is particularly true given the evidence of President Trump’s documented interest in financial burden sharing with allies, and the widely shared concerns, including by the Obama/Biden Administration, with corruption in Ukraine and the need to protect American taxpayers.

Even if President Trump had mixed motives – a public interest combined with a personal interest – the fact is the investigations never occurred and the aid to Ukraine was paused but delivered on schedule.

Moreover, none of the above conduct rises to the level of a “high crime and misdemeanor.”  The first article, Abuse of Power, which charges no crime or violation of existing law is too vague and ambiguous to meet the Constitution’s requirements.  It is simply a conclusion into which any disagreeable conduct can be lumped.

Finally, the second article, Obstruction of Congress, cannot be sustained on this record.  The President’s counsel argued persuasively that its subpoenas were largely unauthorized in the absence of a House resolution delegating its authority to a House committee.  What’s more, the House never sought to enforce its subpoenas in the courts, essentially giving up efforts to do so in favor of expediting the House impeachment inquiry.  The desire to meet an arbitrary deadline before Christmas was prioritized over a judicial determination in the interbranch dispute.




[1] See Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.  That to secure these rights, Governments are instituted among Men, deriving their powers from the consent of the government.”) 

[2] See The Records of the Federal Convention of 1787 (Max Farrand, ed., 1911).

[3] Johnson v. United States, 135 S.Ct. 2551, 2560 (2015).  Chief Justice Roberts similarly relied on Justice Scalia’s views when he raised due process concerns in the context of an amorphous definition of corruption in the criminal prosecution of public officials.  McDonnell v. United States, 136 S.Ct. 2355, 2373 (2016).

[4] A variation of these arguments came up in active litigation related to the House’s access to testimony and evidence connected with Special Counsel Mueller’s investigation.  The district courts rejected the White House Counsel’s position.  See House of Representatives v. McGahn, No. 1:19-cv-02379-KBJ, 2019 WL 6312011 (D.D.C. Nov. 25, 2019) and In re Application of House of Representatives for Release of Certain Grand Jury Materials, No. 1:19-gj-00048, 2019 WL 5485221 (D.D.C. Oct. 25, 2019).  But those decisions are now on appeal, and the D.C. Circuit heard argument in those cases on January 3, 2020.

[5] See Kupperman v. House of Representatives, 1:19-cv-03224-RJL, 2019 WL 729359 (D.D.C. Dec. 30, 2019).

[6] See Order of Supreme Court dated December 13, 2019 granting certiorari in Trump v. Mazars USA, 940 F.3d 710 (D.C. Cir. 2019); Trump v. Deutsche Bank, 943 F.3d 627 (2d Cir. 2019), and Trump v. Vance, 941 F.3d 631 (2d Cir. 2019).  The Supreme Court will hear argument in these cases on March 31, 2020.

[7] Issues associated with executive privilege were litigated and resolved in the courts well in advance of the Nixon and Clinton impeachments.

[8] See December 17, 2019 Interview of Congressman Eric Swalwell by CNN’s Wolf Blitzer (“Unless you send those [witnesses] to us, we can only conclude that you are guilty, because in America, innocent men do not hide and conceal evidence.  In fact, … they do just the opposite, they are forthcoming and they want to cooperate, and the President is acting like a very guilty person.”)

[9] See Marbury v. Madison, 5 U.S. 137, 138 (1803) (“An act of congress repugnant to the constitution cannot become a law.”)

[10] Monroe H. Freeman, “Our Constitutionalized Adversary System,” 1 Chapman Law Rev. 57, 57 (1998).  Justice Scalia noted that the adversarial system is founded on “the presence of a judge who does not (as the inquisitor does) conduct the factual and legal investigation himself, but instead decides on the basis of facts and arguments pro and con adduced by the parties.”  McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991).

[11] Id.

[12] Id.

[13] As even one of the witnesses who testified in the House has recognized, the Constitution designates the Chief Justice to serve as presiding officer of the Senate for presidential impeachments because the Framers understood the obvious conflict of interest and tension in allowing the Vice President to preside over the trial of the President.  Michael Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Texas Law Review 1, 98 (1989).